To challenge the validity of a prenuptial agreement, one looks to see if any of the above elements were abused or not satisfied. This can include–
1. Duress- A prenuptial agreement can be voided if one party was pressured or coerced into signing it. Duress also can be shown if the agreement was presented too closely to the wedding date and is not given enough time to think about the terms of the agreement before signing it. Some sources suggest that agreements signed within 60 days of the wedding may be challengeable based on duress. For example, duress has been shown where the wedding is only days away, the invitations have been sent, large sums have been expended, and cancelling the wedding would be costly and embarrassing. Another example is a case where the groom presented a prenuptial agreement just before the bride’s visa was to expire and told her to sign or the wedding would not take place prior to the visa’s expiration date.
2. Lack of mental capacity- Lack of mental capacity can be shown if the agreement was signed when one party was drunk or under the influence of drugs.
3. Lack of full disclosure- Failing to provide complete and truthful financial statements or the outright hiding of assets can constitute a lack of full disclosure.
4. Lack of independent counsel- An attorney or counsel can be shown to be partial if he or she was provided or paid for by the party demanding the prenuptial agreement.
5. Unconscionable Terms/ Lack of fairness- Disproportionate asset division alone does not make a prenuptial agreement unenforceable, but the agreement cannot be so disproportionately unfair that it is unconscionable or unscrupulous.
6. Child support and child custody provisions- Agreements that specify an amount of child support or dictate who will receive custody of any marital children are unenforceable as against public policy.
7. Unenforceable provisions- Provisions that make unreasonable demands of one party may be deemed unenforceable by the court. Examples of unenforceable provisions include requirements that one party must maintain a certain weight or keep a certain hair color, or must do certain chores (i.e., walk the dog or do the dishes).
8. Ambiguous terms or provisions- A prenuptial agreement is a contract. If a contract is not clear or has ambiguous terms or provisions, it is interpreted against the party who drafted it and in favor of the non-drafting party.
9. Fraudulent inducement/promises made but not kept- Fraudulent inducement is the use of deceit or trickery by one party to cause the other party to act to his or her disadvantage. For example, in a recent New York case, the wife claimed that her husband-to-be promised to tear up their prenuptial agreement as soon as their first child was born. After the couple had children, the husband refused to tear up the agreement and sought to enforce it when the couple divorced. The court ruled that the agreement was void because the wife had been fraudulently induced to sign it, believing the promise that the agreement would be destroyed upon the birth of their first child.
10. Verbal/unwritten agreement- Because of the serious nature of a prenuptial agreement, oral agreements generally are not valid.
The validity of a prenuptial agreement may be challenged in whole or in part. A court may decide to strike only certain provisions from the agreement, leaving the remainder enforceable. Alternatively, the agreement may be so weakened by certain provisions or circumstances that the entire document may be unenforceable.
If you have questions about how these agreements are crafted or how an agreement may fit into your long-term planning, be sure to contact a New York estate planning attorney today for tailored guidance.